A new Biden proposal could increase access to birth control

In 2018, the Trump administration weakened the Affordable Care Act's (ACA) contraceptive mandate, allowing employers and private colleges to deny birth control coverage based on religious or moral objections. But that may be changing soon.  

Last month, the Biden administration published a proposal that would overturn the Trump administration's previous ruling, and instead expand and strengthen birth control coverage under the ACA. The new potential mandate would still allow employers to opt out of coverage over religious reasons, but will no longer be allowed to use moral objections.

Read more: Why birth control access is under threat in the U.S.

"One of the goals is to expand access to birth control — particularly in light of the Supreme Court's recent decision about abortion," says Joanne Roskey, a member in law firm Miller & Chevalier's ERISA & Employee Benefits practice. "If employers want to limit their coverage, it can no longer just be that they decide to for cost-effective reasons or any other non-religious reasons. That would be in direct violation of the ACA's rules." 

Much like the policies, the culture surrounding women's health and its place at work continues to be inconsistent. According to a 2020 survey by the Kaiser Family Foundation, 41% of women of reproductive age did not know that most insurance plans were still required to pay the full cost of birth control for women, despite 78% of employers offering contraceptive coverage to their employees that same year, according to workplace insights platform Statista. 

What remains unclear is just how much the amended rule will realistically improve those numbers. At the time of the Trump administration's proposal in 2018, it was estimated that approximately 126,400 people could lose access by way of religious exemption, and just15 people over exclusively moral exemptions, according to Roskey. However, in an updated statement regarding Biden's proposal, the United States Department of Health and Human Services estimated the reversal could impact over 100 employers, potentially returning free contraceptive access to roughly 125,000 workers who have actually experienced restrictions since 2018.

"They're trying to get a handle on how widespread the impact is," Roskey says. "And even if that's not a significant number of people across the United States, part of it is that it's still one step toward providing access to states that need it — like those severely restricting abortion." 

Read more: Employers grapple with providing benefits and avoiding legal trouble post-Roe v. Wade

For employees and students at institutions that opt out of coverage for religious purposes, the new proposal creates an independent pathway for individuals to access free contraceptive services directly through a willing provider. The federal government would subsidize the cost — estimated at approximately $49 million a year, according to HHS. 

"Employers will no longer be able to exclude contraceptive coverage like before," Roskey says. "And it will definitely enable more women to get access to contraception."